https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9022

Mahindu & 25 others v Trans Nzoia County Government & another (Petition 4 of 2018) [2026] KEHC 9022 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9022 (KLR) Republic of Kenya In the High Court at Kitale Petition 4 of 2018 RK Limo, J June 25, 2026 Between Samuel Mahindu & 25 others & 25 others & 25 others Applicant and Trans Nzoia County Government 1st Respondent The Finance County Executive 2nd Respondent Ruling 1.The petitioners/applicants herein have moved this court vide a Notice of Motion dated 17/12/2025 for the following prayers namely;a.Spent.b.That the order made on 27/11/2025 dismissing the petition be set aside. 2.The grounds upon which this application is made are listed as follows;i.That the petition raises substantial issues of law and it is in the interest of justice to reinstate the same.ii.That the petition was dismissed due to non-compliance with directions given.iii.That the advocate on record did not inform the petitioners of the dismissal.iv.That the petitioners came to know about the dismissal on 10/12/2025 when they visited the registry.v.That the petition is an old matter but the delay in prosecuting it was occasioned by the counsel on record.vi.That the petitioners are now ready to prosecute the petition in the public interest.vii.That the error of counsel on record should not be visited on them.viii.That the applicants are willing to abide by any directions deemed fit. 3.The application is supported by the affidavit of Samuel Mahindu sworn on 17/12/2025 where he has reiterated the above grounds. 4.In their written submissions dated 27/4/2026 done through Ndinyo & Co Advocates the applicants concede that their petition had earlier been also dismissed on 19/4/2024 for want of prosecution and they successfully applied for its reinstatement. 5.The applicants contest the respondents’ contention that this application is res judicata because of their earlier application dated 19/4/2024 seeking for reinstatement after dismissal of the petition. They submit that this application cannot be res judicata because the petition herein has not been determined on the merit. 6.They submit that Article 50 as well as Article 159 of the Constitution emphasizes the right to be heard and the need to serve substantive justice to all the parties. They contend that dismissing a suit for want of prosecution is draconian and counsel has drawn a similarity with someone facing a proverbial ‘sword of “Dances” which should actually be “sword of Damocles” (not “Dances”) which is an ancient Greek Myth to illustrate an illusion to an imminent and ever present peril faced by those in authority. 7.They further submit mistake of counsel should not be visited upon them. 8.The respondents have opposed this application on points of law vide preliminary objection dated 13/3/2026 mainly on the ground that this application is res judicata. They have invoked the provisions of Section 7 of the Civil Procedure Act and a number of authorities that take the position that once a matter has been fully adjudicated upon and a decision made then it should not be a subject to be re-litigated again because of the doctrine of finality. 9.They submit that the sword of justice cuts both ways as parties have a right to speedy resolution of disputes and expeditious, just, proportionate and affordable resolution of disputes as well captured by the overriding objectives under Civil Procedure Act. They contend that the applicants’ indolence is a violation of Section 1A and 1B of Civil Procedure Act. 10.The respondents rely on the following authorities;i.M’tuamwari –vs- County Government of Meru (2022) KEELC 3562 (KLR).ii.Bilha Ngonyo Isaac –vs- Kembu Farm Ltd &iii.Muita (deceased) and Another –vs- Gitahi (2024) KEHC 209 (KLR).They submit that the applicants’ indolence is undeserving of any discretion by this court. 11.This court has considered this application and the grounds advanced. I have also considered the objection raised by the respondents. 12.The applicants are seeking to set aside a dismissal order made on 27/11/2025 where Hon Justice P.J. Otieno dismissed the petition after the petitioners failed to comply with directions given to facilitate disposal of the petition. 13.The respondents have raised a point of law stating that this application is res judicata in light of a similar application dated 19/4/2024 filed after the petition was dismissed on 19/4/2024 for want of prosecution. 14.This court finds that the doctrine of res judicata does not apply against the present application because the circumstances obtaining when the petition was initially dismissed are different from the present circumstances though I agree that the same situation is basically down to one unmistakable fact. Indolence. 15.So while I disagree with the respondents that Section 7 of Civil Procedure Act bars an applicant from approaching the court twice on an adjudicated issue, I agree with them that the applicants’ conduct in this matter reels of indolence and failure to comply with directions of this court. 16.The applicants have heaped all the blame on their previous advocates but this court is not persuaded that an indolent party can find safety in the excuses of “mistake of counsel.” In this matter having stared at the ‘sword of Damocles’ in the earlier dismissal, one would expect that the petitioners to have woken up from their slumber but that was not the case. 17.They have not exhibited any evidence of communication between them and their erstwhile advocates to show their interest and diligence on their part. They have also not exhibited a letter of complaint or grievances to the relevant authorities against their former counsels on record if the advocates failed in their duty to inform them or to effect their instructions. For a party to simply come to court and say that the reasons for inaction is due to mistake of counsel without more in my view is insufficient to warrant a court exercising discretion in his/her favour. A party should do more by showing the actions taken to demonstrate good faith and diligence on his/her part. But for litigants to turn up after almost a month and say they were unaware of what was going on in my view is not persuasive enough in light of the overriding objectives well captured by Sections 1A and 1B of the Civil Procedure Act. 18.The conduct of the applicants in this matter clearly demonstrates that they have just not been serious in pursuit of their cause. They claim that they represent public interest but perhaps that could have contributed to the apparent lack of interest on their part to pursue this petition with zest. The petition herein was filed way back in 2018 and the petitioners have changed advocates from when they filed the petition. This court is not persuaded that the reason for inaction that has seen the petition being dismissed twice for want of prosecution is down to ‘mistake of counsel.”. The applicants simply have themselves to blame and I find that because equity only aids the vigilant and not the indolent, this court being a court of equity with respect to the instant application finds no basis to aid the petitioners once again. Litigation must come to an end. Once beaten, the applicants ought to have been shy to fall into same mistake. The application dated 17/12/2025 lacks in merit and the same is dismissed with costs to the respondents. DELIVERED, DATED AND SIGNED AT KITALE THIS 25TH DAY OF JUNE , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofSamuel Mahindu in personKarani for applicant/petitionersMacharia for respondents